Cotton v. First National Bank of Gwinnett County

Full title: COTTON et al. v. FIRST NATIONAL BANK OF GWINNETT COUNTY et al

Court: Supreme Court of Georgia

Date published: Oct 28, 1975

235 Ga. 511 (Ga. 1975)

220 S.E.2d 132

Opinion

30404.

ARGUED OCTOBER 14, 1975.

DECIDED OCTOBER 28, 1975.

Injunction, etc. Gwinnett Superior Court. Before Judge Pittard.

Neely Player, Edgar A. Neely, III, William F. Welch, for appellants.

Webb, Fowler Tanner, T. Michael Tennant, Jones Webb, William G. Tanner, for appellees.

INGRAM, Justice.

Plaintiffs appeal "from the vacation of the Temporary Restraining Order entered in this action on August 25, 1975," in the Superior Court of Gwinnett County. The complaint seeks to enjoin the foreclosure of plaintiffs' real property and also seeks the recovery of damages. Plaintiffs assert that "The central issue of law [in this appeal] is whether the court below erred in vacating the Temporary Restraining Order and allowing the foreclosure of [the] real property."

We cannot reach the other issues pending in this case in the trial court because the foreclosure sale which plaintiffs sought to enjoin has taken place and whether the trial court erred in vacating its temporary restraining order which originally halted the foreclosure sale is now a moot question. After careful consideration, both the trial court and this court denied plaintiffs' application for supersedeas and the foreclosure sale was allowed to take place.

The fact that the bank purchased the property at the foreclosure sale and has not sold the property does not prevent the injunctive relief sought by plaintiffs from having become moot. This is necessarily true because the injunctive relief sought by plaintiffs, and which was denied by both courts, was to stop the foreclosure. The foreclosure sale has taken place. Thus, the very event sought to be restrained from happening has in fact occurred. Neither the legality of the foreclosure sale nor the other issues raised in the complaint are decided in this appeal. However, since the injunctive relief sought by plaintiffs cannot now be granted, it is moot and defendants' motion to dismiss this appeal must be granted. Brown v. Auchmuty, 232 Ga. 879 ( 209 S.E.2d 209) (1974).

Appeal dismissed. All the Justices concur.

INGRAM, Justice.

ARGUED OCTOBER 14, 1975 — DECIDED OCTOBER 28, 1975.